Michar and Baileford & Anor - [2019] FamCAFC 60

FAMILY COURT OF AUSTRALIA

MICHAR & BAILEFORD AND ANOR

[2019] FamCAFC 60

FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the appellant father seeks to appeal an order made by the Federal Circuit Court of Australia dismissing his application for leave to have his child support liability reviewed – Where leave to appeal is required under s 102A of the Child Support (Assessment) Act 1989 (Cth) – Where the determination of leave requires consideration of the strength of the grounds of appeal – Where the application for leave and the appeal are heard together – Where the test set out in Medlow & Medlow (2016) FLC 93-692 is applied – Where the appellant demonstrates there has been an error of principle made by the primary judge and that he will suffer a substantial injustice if left unprosecuted – Where leave to appeal granted.

FAMILY LAW – APPEAL – CHILD SUPPORT – Where the appellant father contends the primary judge erred by refusing him leave to review his application under ss 111 and 112(1) of the Child Support (Assessment) Act1989 (Cth) – Where the respondent opposes the appeal – Where the Child Support Registrar neither supports nor opposes the appeal – Where the primary judge found a disparity between the appellant’s actual taxable income and his adjusted child support income – Where leave to apply was refused by the primary judge under s 111 of the Child Support (Assessment) Act 1989 (Cth) on the basis the appellant had failed to lodge the relevant tax returns – Where the primary judge’s determination of the appellant’s application was different from the approach foreshadowed to the parties at the hearing – Where the appellant was not afforded procedural fairness – Where the primary judge misapplied the statutory criteria under s 112 of the Child Support (Assessment) Act 1989 (Cth) – Appeal allowed – Where the order is set aside for re-hearing by a judge other than the primary judge.

FAMILY LAW – APPEAL – COSTS – Where leave to appeal granted and the appeal successful – Where the appellant did not seek costs against the respondent – Where the appellant sought a costs certificate – Where the Child Support Registrar was not entitled to a costs certificate under s 14 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the respondent had no costs to recoup – Where no reason to grant a costs certificate to the respondent – Where costs certificates granted to the appellant for the appeal and the re-hearing.

Child Support (Assessment) Act 1989 (Cth) s 102A, 111, 112, 116, 118
Federal Proceedings (Costs) Act 1981 (Cth) s 14

Eames & Eames (2018) FLC 93-866; [2018] FamCAFC 204
Faulkes & Tomkins (2018) FLC 93-854; [2018] FamCAFC 151
Lindsey & Christie [2016] FamCAFC 132
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Lovell v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCAFC 60
Decision Date: 12 April 2019

CaseChat Overview and Summary

The case of Michar and Baileford & Anor involved an appeal by the father, the appellant, against a decision of the Federal Circuit Court of Australia that dismissed his application for leave to review his child support liability. The primary judge had found a discrepancy between the appellant's actual taxable income and his adjusted child support income. The appellant argued that the primary judge had failed to apply the statutory criteria correctly and had not afforded him procedural fairness. The respondent opposed the appeal, while the Child Support Registrar did not support or oppose it.

The legal issues the court had to address were whether the appellant had demonstrated an error of principle by the primary judge and whether he would suffer a substantial injustice if the appeal were not allowed. The court also needed to determine if the appellant had complied with the statutory requirements for lodging relevant tax returns and if the primary judge's determination was in line with the approach foreshadowed during the hearing. The court applied the test set out in Medlow & Medlow, which involves assessing the strength of the grounds of appeal and considering whether the appellant would suffer a substantial injustice without an appeal.

The court found that the appellant had demonstrated an error of principle by the primary judge and that he would suffer a substantial injustice if the appeal were not allowed. The court concluded that the primary judge had misapplied the statutory criteria and did not afford the appellant procedural fairness. Consequently, the court granted leave to appeal, allowed the appeal, and set aside the order made by the primary judge. The court ordered that the case be remitted to the Federal Circuit Court of Australia for re-hearing by a different judge. Additionally, the court granted the appellant costs certificates for the appeal and the re-hearing, as the respondent had no costs to recoup and the Child Support Registrar was not entitled to a costs certificate.

The final orders of the court were to grant leave to appeal, set aside the primary judge's order, remit the case for re-hearing by a different judge, and grant costs certificates to the appellant for the appeal and the re-hearing.

Orders

Orders of the court

Leave to appeal be granted.

The appeal be allowed and Order 1 made on 28 June 2018 be set aside.

The Amended Initiating Application filed by the appellant on 30 January 2018 is remitted to the Federal Circuit Court of Australia for re-hearing by a judge other than Judge Cassidy.

The appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

The appellant be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the re-hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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